Documents to check when buying a (used) apartment in Germany:
Teilungserklärung (Declaration of Division) and Aufteilungsplan (Partition plan)
This is the division plan which shows how the various ownership parts of a building are separated between each apartment owner. It shows which parts are part of the shared Gemeinschaftliches Eigentum and which parts belong to each owner’s private Sondereigentum. A new owner alone cannot change this deed. Changes require 100% unanimity of agreement of owners and can only be changed by notarial deed.
Gemeinschaftsordnung (Community of owners‘ rules)
This is usually part of the Teilungserklärung (see above). It guides the relationship between the community of owners. Included are items such as voting rules and rights of owners, usage rights, allocation key for Wohngeld, etc.
Grundbuchauszug (Extract from land registry)
Within the Kataster (land registry) each property has its own document in the Grundbuch (registry of deeds): The Grundbuchblatt.
These are obtained from the Amstgericht but only by, or with authorisation from, the current owner.
Items to be checked include the following:
Abteilung I – Eingetragener Eigentümer (registered owner)
To ensure that the person selling the property is the registered owner and therefore has the right to do so.
Abteilung II – Charges and limitations e.g. usage rights, life tenancy, options to buy, land charges, compulsory purchase endorsements e.g.:
Wohnrecht (Right of residence)
Rights to residence of part of or a whole building to the exclusion of the owner.
Nießbrauchrecht (Usage rights (of others to use the property))
Such a right grants the bearer of such rights use of the property, usually for his lifetime.
Grunddienstbarke) (Limitations of Usage)
The deeds can contain a limitation on the usage of the property by the owner. These limitations, like other conditions, will be passed on to the new owner upon transfer of the property.
Abteilung III – Mortgage rights
Erbbaugrundbuch (Leasehold deeds)
Erbaurrecht (Leasehold) information is entered on a special page in Grundbuch. Most apartments as part of a Wohnungseigentum are freehold, however this should be checked.
Where applicable, a copy of the Leasehold contract itself should be obtained.
Wohnflächenberechnung (living area calculation)
This is an important measurement, partly because the value of the property is determined, amongst other things, by these measurements.
It must be ensured that the measurement was made according to the appropriate legal regulations, either the Wohnflächenverordnung (WoFlV) or DIN 277.
Altlastenkataster (Contaminated sites register)
Obtainable from the Bauamt (building office).
Marks all areas on the map that are suspected of contamination from waste, chemicals or debris.
Exposé including floor plan (Gundriss)
Although this is primarily the seller’s marketing pamphlet it also acts as a useful summary document that the buyer can use for, amongst other things, obtaining finance for the purchase.
The floor plan should be careful checked against the Teilungserklärung (declaration of division) and/or Aufteilungsplan.
Jahresabrechnung (Annual financial report)
This is prepared by the administrator of the Wohnungseigentümergemeinschaft (collection of apartments belonging to the house) and is agreed upon during the annual meeting of owners (Eigentümerversammlung).
The Jahresabrechnung contains all the actual incomings (from Wohngeld contributons from owners) and shared outgoings (common usage power, rubbish disposal, communal cleaning, gardening, administration, buildings insurance, etc.) for the previous year.
Wirtschaftsplan (Spending plan)
This is prepared by the administrator of the Wohnungseigentümergemeinschaft (collection of apartments belonging to the house) and is agreed upon during the annual meeting of owners (Eigentümerversammlung).
It is similar to the Jahresabrechnung (Annual financial report) but forecasts forwards for the coming year, rather than looking backwards.
This amount is important to any new owner because it determines the level of monthly Wohngeld contributions for each apartment.
Instandhaltungsrücklage (Maintenance reserve)
Part of the monthly Wohngeld payments of the owners of each apartment go towards the maintenance reserve. (The other part going to cover the on-going running costs).
The level of the reserve is very important to any prospective owner of the apartment. The level of this reserve should be high enough to cover any foreseeable or planned maintenance, renovation or modernisation work. If not, the new owner can find himself having to pay a large unforeseen bill.
The apartment’s share of the building’s maintenance reserve included in the price can be deducted from the basis for the calculation property purchase tax.
Protokolle der Eigentümerversammlungen (Reports of meetings of owners)
It’s important to check carefully the previous few year’s reports of the annual owner’s meetings.
Key items to watch for are items such as decisions to pay for modernisation work, not out of the maintenance reserve, but out of additional contributions from the owners.
Failure to check such items can mean a nasty financial surprise for a new owner of an apartment.
Hausordnung (House rules)
The obligations under any already existing house rules are taken over by the new owner of an apartment. These rules can only be amended by majority decision of the owners during the annual meeting of owners.
House rules contain such items as rules about noise, use of communal areas such (e.g. courtyard) etc.
Energieausweis (Energy Certificate)
The seller should make this available so that you can check the energy efficiency of the apartment.
Building insurance policy
The administrator of the Wohnungseigentümergemeinschaft can provide this. It is important that as an owner you know to what level and against what your apartment is collectively insured.
Rent or lease contracts
The rights of the tenant and the obligations/rights of the landlord are not altered by the sale of the property. Therefore the landlord side of the rental/lease contract is taken over by the new owner upon completion of the property sale.
The area of changing of rental contracts (e.g. rent increases due to modernisation) is a complicated area of law and the services of a specialist lawyer should always be sought.
Furniture and equipment list
Such a list should identify:
What is in the apartment – what will be left and is already included in part of sales price.
What can potentially be left for a negotiated price.
What will be cleared before transfer of ownership. In order to avoid later disputes, it should be ensured that the important points are included in the sales contract.
Furniture and equipment included in the price can be deducted from the basis for the calculation property purchase tax.
Kaufvertrag (Sales/Purchase contract)
The important thing is to ensure that all items in the contract are understood.
It is the duty of the notary to ensure that all items are understood (with the help of a specialist translator where applicable) during the notary appointment.
But this can be too late: It is better to fully understand the contents and ask the seller for amendments to the contract where necessary, well before the meeting. The checking of the documents above is what is required in order to be able to check in advance the contents of the purchase contract.
Items to especially watch out for in the purchase contract include, amongst others:
Any clauses regarding payment of purchase price penalties/interest by the buyer.
Zwangsvollstreckung (legal foreclosure) – Any such clause should be deleted. This gives the seller the right of enforcement. It can and should be taken out if included.
Clauses for retreat from sale or reduction of price in case deliberately hidden (by owner) serious defects in apartment – Such a clause should be added if not already existing.
Auflassungsvormerkung (priority notice of conveyance) – important protection for the buyer so that the seller cannot, for example, sell to a third party between the time of notarial conveyance and the entry of new ownership into the land registry.
Wohngeld and other payment arrears – It is better to get written into the purchase contract that there are no back payments to the administrator due. Otherwise such obligations pass to the new owner of the apartment upon transfer of ownership.
Ensure that any equipment (e.g. built-in kitchen) are separately mentioned and priced in the contract. This is important because this amount can be excluded for the purchase cost as used to calculate the Grunderwerbsteuer (property purchase tax): 3.5% of purchase price (4.5% in Berlin).
Disclaimer:
This document should be used for information purposes and as a general guide only.
Your Place makes no representations as to the accuracy, completeness, suitability or validity of any information in this document and will not be liable for any errors or omissions in this information or any damages arising as a result of its display or use.
For areas of uncertainty the advice of a specialist property lawyer should be sought.